The decision to operate and consent

On the morning of December 19, Giddins conducted a second echocardiogram. He concluded that, while Erin's oxygen saturation was satisfactory, she would be in trouble once her ductus arteriosus closed. For this reason, he concluded that a shunt was required.

Erin was treated with prostaglandin to keep her ductus arteriosus open. Giddins testified that this was done in response to her history and heart condition and not as a response to any decline in her condition.

At 1610 hours on December 19, Erin became very cyanotic during feeding and stopped breathing for about 30 seconds. She was ventilated by hand with oxygen, and secretions were suctioned from her lungs. She started to breathe again and her colour remained pink until 1620 hours, when she stopped breathing again. After three attempts, an endotracheal tube was inserted and a moderate amount of thick secretions were suctioned out. A chest X-ray was interpreted as being normal.

Giddins testified that, on December 19, he discussed the need for surgery within the next one to two days with Erin's parents. He recalled explaining the operation as a relatively simple procedure, in which a tube would be placed between two blood vessels. He testified that he did not recommend any alternatives because he did not believe there were any; nor did he discuss having the operation undertaken at a different centre. In his testimony, Giddins said that he thought that surgery had a five to ten per cent risk of mortality. He indicated that he did not discuss risk with the parents. Because Odim was not available for a consultation that weekend, no date was set for surgery.

When the Petkaus went to visit Erin on Monday, December 20, they were told that they could not see her because she was being prepared for surgery. This surprised them, since they had yet to meet the surgeon. They had thought that surgery would not take place for several days. They said they were told that while Odim had previously been unavailable, he now was available and ready to operate. Barbara Petkau testified:

We just thought at the time, well, like, better sooner than later. If it has to be done, get it done and over with, and we can be on our way. They more or less assured us that we would be out of there by New Years. (Evidence, page 2,523)

On December 20 at noon, Odim assessed Erin and determined that she needed a Blalock-Taussig shunt to provide her with a stable source of blood flow to her lungs. He then spoke with the family. In his testimony, he said:

I don't remember the exact wording of the conversation except to discuss that the child needed to have a shunt for pulmonary blood flow, talked about the anatomy of the child and talked about what happens next after a shunt in terms of the child would need another operation to fix the heart, talked about the problems that you can get with shunts, including redoing them or the shunt blocking and that essentially was sort of the gist of my conversation. I don't remember the wording, the exact wording. (Evidence, page 26,238)

He also spoke to Erin's parents about risk. He testified that:

I essentially told them that there are risks from a shunting procedure of bleeding, of clotting, having to do the shunt again, that there were risks of death and I told them that 8 to 12 or 8 to 10, I don't recall the exact ball park, of patients would have problems with a shunt including death. (Evidence, page 26,240)

He testified that he did not believe he had indicated what per cent of that eight to twelve per cent were at risk of dying.

Barbara Petkau testified that Odim had drawn them a picture of the heart and indicated its lesions. Furthermore, he told them that it was a very low-risk operation. Barbara Petkau also testified that, as a result of her discussions over the weekend with Soni and Savani, she was left with the impression that Odim was one of the best available surgeons.